This case was affirmed at a former day of this term, and now comes before us on motion for rehearing.
Appellant strenuously insists that the judgment of affirmance was *Page 378 erroneous because of the fact that in the opinion of the court we discredited appellant's theory of self-defense, and among other things, he now brings before this court, in his motion for rehearing, affidavits re-enforcing that theory, and showing that deceased was actually armed with a knife at the time the homicide was committed. The affidavits show in effect that since the affirmance, and the publication thereof, in the press, it came to the attention of-one W.W. Neunhoffer that he found an open knife at the scene of the homicide immediately thereafter, and delivered same to the officers of San Antonio, and that probably said knife had not been used in evidence. This affidavit is substantially as follows: That he came to San Antonio about the night of the 4th of September, 1906, from Comfort, together with C.C. Vann and Emil Rauch, and that they spent some time together looking over the city. About midnight they were going to the Mahncke hotel and heard the shooting, which occasioned the homicide, and ran as fast as they could to the place. When they reached there some parties were moving the body of Albert Miller from the car line to the sidewalk or near the sidewalk. Miller was not dead at the time. At that time this witness saw a knife on the car track, one or more cars having passed over it and crushed the handle. The knife was a white-handled knife with the large blade open, and was not further than two feet from where the deceased fell. The witness picked the knife up, and a policeman standing by saw him, and walked up and looked at the knife, and the witness handed the knife to him; that the witness did not know any of the parties or any of the attorneys; did not know when the case was called for trial. The first that he knew of the action of the court was when he saw the notice in the paper that the case had been affirmed, and stating that defendant was unable to prove that the deceased had a knife at the time of the killing. Other affidavits show that this knife was deposited in the police department of San Antonio in an envelope containing this endorsement "William Taylor: This is a knife found and think was used in the killing scrape of Albert Miller, 9-4, 12:25 a.m. Knife found by Klockenkemper at the place of the killing." The affiant Phillips says that he turned the knife over to Chester H. Terrell, and the knife is the same one turned in on that night, which was handed in by Klockenkemper on the night of September 4, 1906. Klockenkemper in substance testified that he recognized the knife shown him as the one handed him at the place of the shooting, and that he turned it into headquarters. There are other affidavits showing the custody of said knife and identifying same. Benson's affidavit shows that he had been in the county jail since September 4, 1906; that he was without money, and was unable to procure any testimony in the case for his defense, and all the testimony in the case was procured by his attorneys; that he did not know W.W. Neunhoffer, J.S. Phillips, J.C. Evans, Emil Rauch, C.C. Vann, George Moore, and Martin Klockenemkemper, nor any of them, and did not know that *Page 379 any of them knew anything about this case; that the testimony known by them was newly discovered so far as he was concerned, and his attorneys show that they used diligence, and they were unable to ascertain said testimony, and did not know of it until subsequent to the affirmance of this case, and until they were written to by Neunhoffer after the case was affirmed. Appellant insists that notwithstanding said evidence formed no part of the record on appeal, and is newly discovered evidence since the affirmance of the case, that still this court should consider same in some way; if in no other way, that it be sent down for a new trial before the district judge, upon a new motion embracing the newly discovered evidence, and he refers us to Turner v. State, 17 S.E. Rep., 752; State v. Way, 18 S.E. Rep., 677; State v. Young, 14 S.E. Rep., 66; State v. Sullivan, 19 S.E. Rep., 722. These were all cases from other States and doubtless based upon some statute peculiar to their jurisprudence. It is also argued that under the case of Moore v. State, 53 S.W. Rep., 862, that we are authorized to consider this newly discovered evidence as a part of the record on motion for rehearing. That case has no application to this character of case. We notice that the court in the opinion calls such procedure a motion for rehearing on the ground of newly discovered evidence; it should have been more appropriately, termed a motion for a new trial, as it was made in the court below. Of course, in a motion for a new trial newly discovered evidence could be used under our system as defined by our statute. After an appeal has been perfected in this court, the transcript can only contain what transpired during the trial and subsequent thereto in connection with the case during the term of the court, and until the appeal is finally perfected thereafter, and although important evidence may have been discovered subsequent to the adjournment of the court, we know of no method by which same can be gotten into the record, as an integral part of the case to be considered on appeal. Of course, statement of facts and bills of exception are authorized to be filed within twenty days after the adjournment of court on a proper order to that effect, and these constitute a part of the record, and these may be corrected subsequently by the court before the completion of the record. There is no authority of which we are advised that would authorize this court to consider newly discovered evidence ascertained after the adjournment of the term of the court, much less after the record has been perfected, and the case brought into this court, and after the case has been tried on that record, and a motion of this character is presented for the first time on a motion for rehearing of the case. Such newly discovered evidence, however important, can only be used to invoke executive clemency.
In appellant's motion for rehearing he strenuously insists that this court was in error in holding that the court's charge on self-defense, though erroneous as considered by the court, was not such error as ought to reverse the case, and in that connection appellant has grouped the *Page 380 facts suggesting that the theory of self-defense was much stronger than assumed by the court in its opinion. This charge of the court is contained in the original opinion, and appellant's criticism of same was that it made his right of self-defense depend on the relative strength of the parties and defendant's knowledge of the character and disposition of the deceased, when as appellant contended there was no evidence of the character and disposition of the deceased, much less any knowledge on the part of appellant of his character inasmuch as they were strangers to each other, and again, that the charge was predicated according to the language thereof upon the idea that the deceased had made an attack upon appellant, when as claimed by appellant he had not made an actual attack on him, but was about to make an attack or was in such attitude as caused appellant to believe that he was in the act of attacking him. We note, in disposing of these propositions of appellant, we said formerly: "If it be conceded that the testimony suggests self-defense at all as predicated on the attack, the deceased turning, and, according to his witnesses, going in the direction of appellant being an attack," which indicates that the court was not then impressed with the idea that self-defense was by any means strongly presented in the case. In fact, in the subsequent portion of the opinion we observed as follows: "Giving full stress to all appellant says deceased did on that occasion, it occurs to us that the testimony suggesting self-defense, to say the most of it, is exceedingly weak." As stated, appellant, in his motion for a rehearing challenges the court's declaration that self-defense was not a live issue in the case, and he urges even if it was in the case at all, it was the duty of the court to give an absolutely full and fair charge on the subject. Now, on appellant's first proposition, unquestionably the authorities show that where there is no evidence of the character and disposition on the part of the deceased known to appellant, that a charge on self-defense should not embrace this phase of the case, as such a charge is calculated to be misleading, and we believe we were in error in holding that the charge in this respect was not calculated or might not have been injurious to appellant. Moreover, the facts suggesting self-defense marshaled by appellant from the record show with much more cogency then originally occurred to us that the facts of the case authorized and required a charge on this subject, and that the charge as given was not accurately predicated on the facts of the case; that is, deceased may not from appellant's standpoint have been in the very act of making an attack on him, but he was in the attitude of advancing towards him for the purpose of making an actual attack. We believe that the court should have given a charge predicated both on an attack then being made, and on an attack then impending and about to be made. This, it seems, from a close inspection of the facts was necessary in order to adequately safeguard appellant's rights.
We also note that appellant insists that in the original opinion we left unnoticed an important error asigned by him, to wit: that the *Page 381 court selected an important piece of testimony of the omission of witnesses to testify as to an important fact, and charged thereon, and that same was a charge on the weight of evidence. This assignment escaped us. This was the charge of the court excepted to: "The State has introduced the evidence of the witnesses Emmet Polk, Mary Lou Courtney and Sarah Jones taken at the inquest trial to impeach them by showing that they had given contradictory testimony on said inquest trial to that given now, and failed to testify at said inquest trial as now that deceased turned and advanced towards defendant at the time of the shooting. The object of introducing the impeaching testimony is to have you disbelieve and not to accept as true, and to refuse to give credence to the testimony of said Emmet Polk, Mary Lou Courtney, and Sarah Jones, given before you. Such evidence goes to both the discredit of the said witnesses and the falsity of the testimony impeached, and it is for you to say whether such impeached evidence, if any, does or does not absolutely disprove and falsify the evidence of said witnesses given before you. The rule that a party introducing a witness shall not attack his testimony is so far modified as that any party when facts stated by the witness are injurious to his cause, may attack his testimony in any other manner, except by proving the bad character of the witness. For this reason the State was allowed to cross-examine the State's witness, Sarah Jones, and offer impeaching testimony, as herein stated, as it claimed surprise at said witness' testimony, claiming that she did not testify now as at the inquest trial and that the testimony now given was against the State and favorable to the defendant. You can only consider such impeaching evidence for impeachment purposes, that is for no other purpose than that of affecting the credibility of said witness, Sarah Jones, and the same as to the testimony of Mary Lou Courtney." Of course, impeaching testimony of this character goes both to the weight and credit of the impeached witness, which is in all cases introduced for the purpose of affecting the credibility of the witness proposed to be impeached; that is it is for the jury under all circumstances to determine the weight and credit which they shall give to the testimony of any witness attempted to be impeached. In this particular case it seems the court undertook to tell the jury the character of the contradictory statements, and among other things, he told them that the State had introduced evidence showing that said witness had failed to testify at the inquest trial that deceased turned and advanced towards defendant at the time of the shooting. That may be true, still it should have been left to the jury to determine whether said witnesses had failed to so testify at the inquest trial; and as framed, it occurs to us that the calling attention, in the way in which it was done, to this fact, and the declaration by the court that the witness had failed to so testify, could be used by the jury to discredit said witnesses, was a charge in this respect upon the weight of testimony, and we believe this error was of a serious character. *Page 382
The rehearing is accordingly granted, and the judgment is reversed and the cause remanded.
Reversed and remanded.
Brooks, Judge, dissents.